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Ian Mulgrew: Harper’s assault on judicial system is appalling

In addition to remaking top court, PM hopes to weaken resolve of lawyers who labour for Liberals, NDP

Justice Richard Wagner, right, delivers a speech as his fellow judges take part in his welcoming ceremony at the Supreme Court of Canada in Ottawa on December 3, 2012.

Photograph by: Blair Gable
, THE CANADIAN PRESS

Prime Minister Stephen Harper seems intent on politicizing the country’s judiciary and legal system as one of his main legacies.

Whether on immigration, prostitution, privacy, marijuana, mandatory minimum sentences, female judges, appointments to the Supreme Court of Canada … who can remember a government so stubbornly and ideologically battling for legislation against a tide of professional advice and empirical evidence.

Barely a week goes by without the Conservative government poking lawyers and judges in the eye in the name of some half-baked, tough-on-crime shibboleth.

At the same time, its history of judicial appointments since 2006, when Harper ascended to office, has been gender-biased and politically motivated — plum $300,000-plus-a-year positions for like-minded friends, with job guarantees till 75 and gold-plated pensions to the grave.

At this rate, according to a recent estimate, women and aboriginal people can only dream about equality sometime after 2035.

It’s appalling.

Now the government is downplaying allegations it is orchestrating the appointment of conservative-leaning Justice Robert Mainville to the Supreme Court of Canada by moving him to the Quebec Court of Appeal from the Federal Court of Appeal.

The high bench embarrassed Harper in March when it rejected his appointment of administration pal Justice Marc Nadon by ruling 6-1 that federal judges cannot be appointed to a Supreme Court seat constitutionally guaranteed to Quebec.

By moving Justice Mainville to the Quebec Court of Appeal, the government hopes to inoculate him from the same fatal attack when Justice Louis LeBel retires at 75 in November.

If Harper follows through, it would be an unprincipled end-run around the spirit of the Supreme Court ruling — yet it is expected.

This government’s approach to law-and-order has generally run counter to the best advice available about dealing with gangs, drugs and social disorder.

For the most part, it espouses “spare the rod, spoil the child” rhetoric that has been discredited in practice across the U.S. and Europe — we’re paying more and more expensive police salaries when crime rates are at historic lows, instead of improving social programs.

At the same time, Harper appears to be stacking the country’s top bench with his ideological soulmates to presumably hamper judicial checks on controversial legislation.

We’re told this plays well with Tory supporters.

I am skeptical: I do not believe there is a constituency for this anti-intellectual, anti-rule-of-law agenda.

Could Justice Minister Peter MacKay really find a dinner party where women wouldn’t laugh him out of the room for voicing the stupid 1950s opinion about family life preventing them from becoming judges?

As for Harper, who’d even invite him to dinner?

I don’t believe this government is only playing to easy applause from the cheap seats — I think it also is playing a long game, and not just in terms of loading the Supreme Court for a generation to come.

Rather, the Conservatives are as well hoping to enervate the idealists of the legal community who labour for the Liberal and NDP parties — professionals who take a huge interest in politics, who donate cash, who volunteer and who provide the intellectual heavy lifting for political platforms.

Instead of focusing on work for the opposition parties during the administration’s tenure, the country’s socially conscious lawyers have had to labour on briefs trying to prevent severe injury to society’s most vulnerable, or otherwise trying to prevent bad laws coming into effect.

Meanwhile, judges are being transformed into arbiters in an ideological campaign that is a no-win for the legal system.

Instead of issues being resolved in Parliament, we are seeing too much lengthy, expensive litigation over legislation with a growing cast of government appointees acting as referees.

It’s a cynical strategy that will erode the apolitical credibility of a core institution of our democracy — the legal system.

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